19 FLRA No. 113
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 943
Union
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS KEESLER TECHNICAL
TRAINING CENTER, KEESLER AIR
FORCE BASE, MISSISSIPPI
Agency
Case No. O-NG-771
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
concerning the negotiability of four Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
Article XII, Section 3, first sentence:
Management agrees to avoid assignment whether voluntary or
involuntary of janitorial and other related custodial duties,
either on a temporary or continuing basis, be(ing) given to
civilian employees who are officially assigned to clerical,
technical administrative or professional positions.
Union Proposal 2
Article XII, Section 5, second sentence:
Employees who are unable to perform their regular assigned
duties because of illness or injury, but who are capable of
returning to or remaining in a duty status; management agrees to
assist employees in finding assignments compatible with their
medical condition if such a position is available, and vacant, or
their regular assigned duties may be temporarily tailored to
temporary medical limitations.
The Agency argues that Union Proposals 1 and 2 are outside the duty
to bargain under section 7106(a)(2) of the Statute because they directly
interfere with management's rights. The Authority agrees.
As to Union Proposal 1, in providing that management will avoid
assigning janitorial or other custodial duties to certain types of
employees, the proposal has the same effect as the proposal at issue in
New York State Nurses Association and Veterans Administration Medical
Center, Bronx, New York, 11 FLRA 578 (1983). The proposal at issue in
that case provided that certain tasks were not ordinarily intended to be
a part of a nurse's normal duties. The Authority held, relying on its
decision in Association of Civilian Technicians and State of Georgia
National Guard, 2 FLRA 581 (1980), that the disputed proposal was
outside the duty to bargain under section 7106(a)(2)(B) because it
placed restrictions on management's ability to assign certain duties to
nurses unless the requisite circumstances existed. /1/ Contrary to the
Union's contention that the proposal does not preclude the assignment of
janitorial duties but merely provides for management to avoid such
assignments where possible, the Authority concludes that the proposal
herein, like that in Veterans Administration Medical Center, Bronx,
restricts management's ability to assign work in specified
circumstances, i.e., wherever and whenever it can be avoided. Thus, for
the reasons set forth in Veterans Administration Medical Center, Bronx
and State of Georgia National Guard, the Authority finds that Union
Proposal 1 herein directly interferes with management's right, under
section 7106(a)(2)(B), to assign work and is outside the Agency's duty
to bargain under the Statute. See Laborers' International Union of
North America, AFL-CIL-CLC, Local 1267 and Defense Logistics Agency,
Defense Depot Tracy, Tracy, California, 14 FLRA 686, 691-92 (1984)
(Union Proposal 5).
With respect to Union Proposal 2, it requires management to attempt
to find, for employees who are unable to perform their regular duties
due to illness or injury, work assignments which are compatible with
their medical condition or to reshape the regular duties of the
positions of those employees. In this regard, the proposal has
essentially the same effect as the proposal at issue in National
Federation of Federal Employees, Local 1624 and Air Force Contract
Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980). The
proposal at issue in that case required the agency to assign employees
who were unable to perform their regular duties due to illness or injury
to work assignments which were compatible with their physical conditions
or to tailor their jobs to fit their physical limitations. The
Authority held that the proposal, by requiring management to detail
employees to particular types of positions, directly interfered with
management's right to assign employees in the agency under section
7106(a)(2)(A) of the Statute, /2/ and, by requiring management to
redesign the duties of a position, directly interfered with management's
right to assign work under section 7106(a)(2)(B). Contrary to the
Union, however, the fact that the instant proposal requires management
to attempt to undertake such actions does not substantially distinguish
this case from Contract Management Division. The implication of the
proposal at issue herein is, nevertheless, that where management
determines the reassignment of the employee or the redesign of the job
is possible it must take those actions. Cf. American Federation of
Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank
Board, New York District Office, 13 FLRA 446, 450-452 (1983) (Union
Proposal 3) (proposal requiring critical elements of position to be
related to grade-controlling duties of position "to the extent
practicable" violative of management's rights under section
7106(a)(2)(A) and (B). That is, in order to make a good faith attempt
to comply with the proposal, management would have to reassign employees
or redesign jobs wherever and whenever it determines it could do so.
Thus, for these reasons, and the reasons set forth in the Contract
Management Division decision, Union Proposal 2 herein directly
interferes with management's right under section 7106(a)(2)(A) to assign
employees in the agency and under section 7106(a)(2)(B) to assign work
and, therefore, is outside the Agency's duty to bargain under the
Statute. See American Federation of Government Employees, AFL-CIO,
International Council of Marshals Service Locals and U.S. Marshals
Service, 15 FLRA No. 71 (1984) (Union Proposal 3); Laborers'
International Union of North America, AFL-CIO-CLC, Local 1267 and
Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14
FLRA 686, 695 (1984).
Union Proposal 3 /3/
In Center Regulation 40-2, paragraph 4-6(c) AWARDS, the classes
I and II should be amended as follows:
Class I-- Meritorious Civilian Service award, Outstanding
Performance Rating, and Superior Rating on most recent JPAS form.
Class II-- Sustained Superior Performance Award, Quality step
increase, and Excellent rating on most recent JPAS form.
Union Proposal 4
In Center Regulation 40-2, paragraph 4-4 B(3) should be amended
to add:
Education and training courses which are determined to be
job-related will be used to rank employees for promotional
purpose. Education will be applied as the second sort factor in
the PPRS. Education will be credited at a rate of one (1) point
per semester hour, for past-secondary educational courses.
Training courses will be credited at a rate of one (1) point for
every thirty (30) hours of training. A maximum of 105 points will
be credited for training or education combined.
Local 943 will be represented on the panel, committee or other
group which determines which courses will be credited for
promotional purposes. The work of this group will be completed
prior to 1 December 1982.
Union Proposals 3 and 4 purport to modify an Agency regulation which
establishes a promotion plan for use in the identification and selection
of candidates to fill all positions which are subject to the regulation.
In particular, the proposals would amend the regulation to prescribe
certain abilities and accomplishments for which credit will be given,
and the amount of such credit, to candidates in the rating process.
Essentially, therefore, the proposals would establish portions of the
Agency's "crediting plan." In this regard, the proposals have the same
effect as the proposal at issue in The Montana Air Chapter of
Association of Civilian Technicians and U.S. Department of the Air
Force, Montana Air National Guard, 19 FLRA No. 112 (1985). In that
case, the Authority held, adopting the decision of the United States
Court of Appeals for the District of Columbia Circuit in Department of
the Treasury, U.S. Customs Service v. Federal Labor Relations Authority,
762 F.2d 1119 (D.C. Cir. 1985), that a proposal which assigned points
for crediting plan purposes solely on the basis of seniority was
inconsistent with 5 CFR 300.103(a) because it was not derived from a job
analysis which linked seniority to success in the particular position(s)
in question. /4/ The proposals at issue in the instant case similarly
are not based on a job analysis which demonstrates a connection between
performance in a current position or of job-related training and success
in the position(s) for which candidates are applying. /5/
Thus, for the reasons set forth in the Montana Air National Guard
decision, the Authority finds that Union Proposals 3 and 4 at issue
herein are inconsistent with 5 CFR 300.103(a) and outside the duty to
bargain under section 7117(a)(1) of the Statute. /6/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. Issued, Washington, D.C., August 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7106 of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(B) to assign work(.)
/2/ Section 7106(a)(2) of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
. . . .
(2) in accordance with applicable laws--
(A) to . . . assign . . . employees in the agency(.)
/3/ Center Regulation 40-2, Paragraph 4-6(3), Awards, involved herein
provides as follows:
Para 4-6(3) Awards. Awards are used as the second sort factor.
They must have been conferred at the same, higher, or next lower
grade as shown in (a), (b), or (c) below. For positions
classified at two-grade intervals, the award must have been
confirmed at the next lower qualifying grade. A maximum of 3
points may be credited for awards. Credit is given only when
related to the positions being filled and conferred within the
last 5 years. When performance was recognized by both a monetary
and honorary award, only one of the two will be credited.
Civilian service awards and suggestion awards will be given credit
as follows:
AWARDS
1 - 3 Years 3 - 5 Years
Class I 3 pts 2 pts
Class II 2 pts 1 pts
Class III 1 pt 0 pts
(a) Class I - Meritorious Civilian Service Award.
(b) Class II - Sustained Superior Performance Award and Quality
Step Increase and Suggestion Cash Award ($50 or more)
(c) Class III - Special Act Award
Promotion Career Briefs will be included upon issuance of a
certificate to the selecting official and the awards data (Items
31-36) must be considered in making the selection.
Attachment to Agency Statement of Position.
/4/ 5 CFR 300.103(a) reads in pertinent part:
Sec. 300.103 Basic requirements.
(a) Job analysis. Each employment practice of the Federal
Government generally, and of individual agencies, shall be based
on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform
the duties and responsibilities; and
(3) The factors that are important in evaluating candidates.
The job analysis may cover a single position or group of
positions, or an occupation or group of occupations, having common
characteristics.
The Authority has determined that Office of Personnel Management
requirements codified at title 5 of the Code of Federal Regulations are
Government-wide regulations within the meaning of section 7117(a) of the
Statute. Professional Air Traffic Controllers Organization, AFL-CIO and
Department of Transportation, Federal Aviation Administration, 4 FLRA
232, 233 (1980).
/5/ In this regard, the Court stated in the Customs Service decision,
762 F.2d 1119, 1122-23, as follows:
Exclusion of non-job-related education and experience is not
the same as a job analysis before the measurement scheme is
adopted, and cannot reasonably be said to assure the same results.
The latter is apparent from the fact that, even as so limited,
the proposal establishes the number of points to be awarded for
each level of the various factors without any reference to the
demands of specific occupations. It requires, for example, that
boards grant the same number of points for a (job-related)
bachelor's degree in all positions; and that they grant the same
number of points for a sustained superior performance award as for
a bachelor's degree in all positions.
/6/ In view of the decision herein, the Authority finds it
unnecessary to consider the Agency's additional contentions as to the
nonnegotiability of the proposals.